Cite as U.S. v. Russell, 468 F.Supp. 322 (S.D.Tex. 1979)
United States of America,
v.
Greg H. Russell.
Crim. No. B-78-542.
United States District Court, S. D. Texas, Brownsville Division.
March 24, 1979.
J. A. "Tony" Canales, U. S. Atty., Houston, Tex., and Charles
Lewis, Asst. U. S. Atty., Brownsville, Tex., for the Government.
Johnson & Davis, William C. Rountree, III, Harlingen, Tex.,
for defendant.
MEMORANDUM AND ORDER
GARZA, Chief Judge.
On October 10, 1978, a Grand Jury delivered a three-count
indictment against the Defendant Greg H. Russell. Count 1 charges
that the Defendant had knowingly and unlawfully possessed a
firearm, more specifically a destructive device, which was not
registered to him in the National Firearms Registration and
Transfer Record, in violation of 26 U.S.C. section 5861(d). Count
2 alleges that the Defendant had knowingly and unlawfully possessed
a destructive device which was not identified by serial number as
required by 26 U.S.C. section 5861(i). The third count charges that
the Defendant knowingly and unlawfully transferred the destructive
device, failed to pay the transfer tax as required by 26 U.S.C.
section 5811 and failed to file a written application form with the
Secretary of the Treasury for the transfer and registration of the
firearm to the transferee as required by 26 U.S.C. section 5812,
all in violation of 26 U.S.C. section 5861(e). The Defendant,
accompanied by his court-appointed counsel, appeared before United
States Magistrate William M. Mallet on October 20, 1978 and entered
a plea of not guilty. Shortly thereafter, the Defendant filed a
Motion to Dismiss accompanied by a Supporting Memorandum. [footnote
1] This Motion to Dismiss was subsequently answered by the
Government in a Memorandum of Law. The Defendant Russell appeared
before the Court on January 15, 1979, for final pre-trial. He
waived his right to a jury trial, and a trial before the Court was
scheduled for March 2, 1979. This trial was then postponed until
March 7, 1979. The Defendant appeared for trial on that date. At
the trial, the Defendant, through his counsel, presented and argued
his Motion to Dismiss which had been carried along with the case.
After the presentation of five government witnesses,
cross-examination by the Defendant and further oral argument by the
attorneys rep resenting the Defendant and the Government, this
Court denied the Defendant's Motion to Dismiss. Immediately after
this ruling, the Court found the Defendant guilty on all three
counts. The Court ordered that a pre-sentence investigation be
conducted and that sentencing be imposed on April 5, 1979. The
purpose of this Memorandum and Order is to present the findings of
fact and conclusions of law.
I. THE FACTUAL BACKGROUND
The Government presented five witnesses from whose testimony
the facts in this Memorandum and Order have been taken. The
witnesses included Robert Valadez, James Wheeler and James L.
Sudberry, all of whom are Special Agents of the Department of the
Treasury, specifically, the Bureau of Alcohol, Tobacco and Firearms
[hereinafter the "ATF"]. The fourth witness was Walter Mitchell, an
employee of the ATF, who qualified as an expert in explosives and
chemical analysis. The final Government witness was Ralph E. Cooper
who is Explosive Enforcement Officer within the Explosive
Technology Branch of the ATF and was qualified as an expert witness
at the trial.
in June, 1978, Agent Valadez, stationed in Oklahoma City,
Oklahoma, traveled to the South Texas area to conduct undercover
activities in regard to this case. At approximately 6:30 p. m. on
June 21, 1978, Agent Valadez followed a confidential informant to
a post office parking lot in San Juan, Texas. Valadez remained at
the parking lot while the informant departed to find the Defendant.
When they returned, Agent Valadez remained in the driver's seat of
his car, the Defendant got into the front passenger's seat, and the
informant sat in the back seat. The agent introduced himself as Bob
Hernandez. The Defendant then removed a plastic bag containing a
brown sticky substance which he said was C-4. C-4 is a white
play-doh-like plastic explosive used by the armed services for
demolitionary purposes. Like, C-4, the brown sticky substance was
a moldable material. Agent Valadez remarked that he had worked with
C-4 in Vietnam and that the explosive had always been white in
color. The Defendant stated that the brown substance was a new type
of C-4 being used by the U.S. Navy. Agent Valadez asked if he could
have a small piece of the substance for the purpose of a test. At
this point, the informant told the other two that he did not want
to be present if they were going to test the explosive, and he
departed in his own car.
The agent, after pinching off a piece of the "C-4," alighted
from the car and touched the sample with the burning end of his
cigarette. The substance burned. Agent Valadez then returned to the
car whereupon the Defendant told him he could obtain as much "C-4"
as Valadez desired. The Defendant said he had a supplier-friend who
was in the Navy. The Defendant informed Valadez that he possessed
three or three and one-half pounds which were available
immediately, but a delivery of fifty pounds or more would require
five to seven days. Valadez inquired of the price, and the
Defendant told him that he had sold the same type of explosive for
$2500 per pound in Reynosa, Mexico. The agent related that such a
price was exorbitant and said he would give him $800 for the entire
three and one-half pounds. The Defendant asserted that he would
suffer a loss of $75 at that price, but he stated that he would
accept $1000. Valadez responded that $950 was his top price at
which point the Defendant acquiesced.
The Defendant then told Valadez to drive him to a little
grocery store across the street so that the former could call a
friend who was keeping the explosives. Valadez obeyed the
Defendant's instructions and waited in the car while Russell went
into the store. After a minute or two, the informant drove up in
front of the store. The Defendant walked out of the store, saw the
informant and hollered at him. The Defendant then spoke with the
informant and told Valadez that he would return in a few minutes.
The Defendant and the informant left together while Valadez
returned to the post office parking lot, having retained the "C-4."
The informant returned alone in two or three minutes explaining
that he had left the Defendant at his house. The Defendant arrived
a few minutes later in a 1975 Pontiac. Valadez then sat in the
front passenger seat of the Defendant's car. The Defendant handed
him a brown paper sack containing five half-pound plastic bags.
Inside those plastic bags was the same type of substance as found
in the first bag. Realizing the total amounted to only three
pounds, Valadez inquired about the other half pound to which the
Defendant had earlier referred. Russell informed him that his
"buddy" had sold it.
Valadez then took the paper sack and placed it in the trunk of
his car. Realizing that he had received no blasting caps, Valadez
inquired about them. Russell told him that he had forgotten to
bring them and returned to his house. Five minutes later, the
Defendant returned with an electric blasting cap equipped with a
length of legwire. Valadez then asked Russell how to use the "C-4."
Russell told him to mold the substance around the blasting cap.
Russell explained that Valadez' next step would be to attach the
legwire to a car battery or any other object which Valadez desired
to demolish. [footnote 2] Russell stated that he had once dynamited
a house in Reynosa using only a quarter pound of the sub stance.
Valadez then said the he wanted his people to examine the substance
and would report back to Russell. Valadez did contact Russell at a
later time informing the latter that the substance did not per form
as well as the C-4 Valadez had used in Vietnam. Valadez then asked
if Russell possessed anymore of his "C-4." The Defendant said that
ten pounds were available in the area, but someone else had it at
that time. Valadez told him that he would need a larger quantity in
order to make his drive from Oklahoma worthwhile. Russell told him
that quantity was no problem. The Plaintiff and the Defendant then
agreed that the latter would in the future supply one blasting cap
for each pound of "C-4."
After this meeting, at about 7:30 on the same evening, the six
plastic bags and the blasting cap were delivered to Agent James
Wheeler in the Hilton parking lot in McAIlen, Texas. Photographs
were taken of all the items on the following day. Although the
materials could have been transported to Corpus Christi for
storage, Agent Wheeler was concerned with the safety of such an
excursion. The odor of nitroglycerin was very strong, and the
temperature outside was 100 degrees. Because of these factors, the
ATF agents telephoned Ralph Cooper in Washington, D.C. and relayed
their anxieties about the explosive to him. Cooper was unsure of
the type of explosive possessed by the agents, but he was aware
that if the substance was dynamite, it would possess the capability
of exploding under such circumstances. In light of this, Cooper
advised that they destroy the explosive and the blasting cap.
Following standard procedures, the explosive and blasting cap were
burned in the presence of Agent Wheeler. The agents preserved
enough of the substance to allow an analysis. This residue was sent
to the ATF laboratory in Atlanta, Georgia. At that lab it was
determined that the substance was in actuality commercial-type
dynamite and not C-4.
On October 11, 1978, Agents Wheeler, Sudberry, Rodriguez and
Viera arrested the Defendant at his home in San Juan. The Defendant
was advised of his constitutional rights at that time. Testimony
from both Agents Wheeler and Sudberry attest to the fact that the
Defendant understood what the agents had told him, appeared clear
headed and responded in an intelligible manner. After being advised
of his rights, the Defendant told the agents that a friend of his
and a third person, whom the Defendant thought was in the Navy and
stationed in Tennessee, had brought the explosives to his house so
that he could set up a trade for a quantity of marijuana. After a
period of time, the Defendant informed them that he was unable to
arrange the requested trade. Afterward, the Defendant's friend gave
the man from Tennessee four or five pounds of marijuana with the
understanding that the explosives would remain at the Defendant's
house until sold. At the time of the arrest no additional explosive
material or blasting caps were found. Additionally, although Agent
Sudberry thought that the Defendant may have exhibited some
symptoms characteristic of a heroin addict, no evidence was ever
presented to prove such fact.
At the trial, the Court was presented with a certificate from
the ATF that the explosives sold by the Defendant were not
registered or lawfully acquired by him. It also certified that the
Defendant had made no application to make or transfer the
explosives nor that he had paid the making or transfer tax on the
explosives. Additionally, Agent Wheeler stated that the explosives
had possessed no ATF serial numbers as required by law. Finally, it
was elicited at trial that the components sold to Valadez could not
be exploded without some sort of power source.
Testimony of the Government witnesses also produced factual
points concerning the explosive itself. The explosive was a type of
commercial dynamite which is normally used in geological work. Such
commercial dynamite is manufactured and sold in a cylindrical shape
so that it can be deposited easily into a bore hole drilled in rock
which is subsequently exploded. Such commercial dynamite is wrapped
in wax paper or cardboard and carries warnings concerning its
explosive power. Commercial dynamite is never sold in a moldable
state packaged in plastic bags. Thus, what the Defendant sold was
commercial dynamite which had been transformed from its usual
design and shape. Additionally, the market price of dynamite is
between $1.00 and $2.00 per pound, and the price of an electric
blasting cap can range from thirty-five cents to $1.50. The market
price of C-4 was never offered at trial. C-4 is obviously a more
powerful explosive than commercial dynamite, however. Dynamite
strength is measured by its speed of detonation. Commercial
dynamite possesses a velocity of detonation of 13,000 to 17,000
feet per second. C-4 is gauged at 22,000 to 23,000 feet per second.
C-4 is preferred by the military in its demolitionary activities
because the substance is designed to produce a great deal of force
by using only a small amount.
II. THE MOTION TO DISMISS
Basically, the Defendant contends that the explosive he sold
to Agent Valadez cannot be defined as a destructive device under 26
U.S.C. section 5845(f), and ergo is not a "firearm" under 26 U.S.C.
section 5861. If the Defendant's contentions were accepted as true,
the indictment would have to be dismissed. Although the motion
raises a genuine and important issue which is the subject of
dispute among the Circuit Courts of Appeals and was ably argued by
counsel for the Defendant, this Court is of the opinion that the
indictment in this case does in fact allege a crime under section
5861.
The Defendant was indicted under 26 U.S.C. sections 5861(d),
(e) and (i) which provide as follows:
It shall be unlawful for any person--
* * * * *
(d) to receive or possess a firearm which is not
registered to him in the National Firearms Registration and
Transfer Record; or
(e) to transfer a firearm in violation of the provisions
of this chapter [Chapter 53 of Title 26, U.S.C.]; or
(i) to receive or possess a firearm which is not
identified by serial number as required by this chapter
The term "firearm" is defined for purposes of the present case
under section 5845(a) which states as follows:
(a) Firearm.--The term "firearm" means . . . (8) a
destructive device.
A destructive device is defined in pertinent part in sections
5845(f)(1) and (3):
(f) Destructive device.--The term "destructive device"
means (1) any explosive, incendiary, or poison gas (A) bomb,
(B) grenade, (C) rocket having a propellant charge of more
than four ounces, (D) missile having an explosive or
incendiary charge of more than one-quarter ounce, (E) mine, or
(F) similar device; . . . and (3) any combination of parts
either designed or intended for use in converting any device
into a destructive device as defined in [subparagraph] (1) .
. . and from which a destructive device may be readily
assembled.
The latter statute was a part of a bill entitled the Gun
Control Act of 1968, Pub.L. No. 90-618 [hereinafter the "Act"],
which was an addition to Title IV of the Omnibus Crime Control and
Safe Streets Act of 1968, Pub.L. No 90-351. Basically, if a device
is not inherently a destructive device under section 5845(f)(1),
the Government must prove that section 5845(f)(3) is satisfied by
showing that a combination of parts would create a destructive
device as defined under (f)(1).
The Defendant contends specifically that the explosive sold in
the present case is not inherently a "destructive device" as
defined under (f)(1). The Defendant then asserts that (f)(3) is
inapplicable since the combination of the components supplied to
Valadez could not be converted into a destructive device under
(f)(1). The Defendant contends that (f)(3) is further inapplicable
because it requires that the combination of parts would readily
assemble into a destructive device, and in the present case an
essential element, i.e., the power source, was lacking. Finally,
the Defendant contends that (f)(3) is additionally inapplicable
because no intent was shown that the device was "designed or
intended" for use as a destructive device.
A. Applicability of the Act to Commercial Dynamite
The Defendant finds his support predominantly in two opinions,
one emanating from the Second Circuit Court of Appeals and the
other from a District Court in New York, which is itself contained
within the Second Circuit. Of those two cases, the Defendant's
strongest one is United States v. Posnjak, 457 F.2d 1110 (2d Cir.
1972). In that case, the Defendant had sold 4,000 sticks of
unregistered commercial dynamite with unattached fuse and blasting
caps to an ATF agent. The Defendant was informed that the dynamite
would be resold to Cuban revolutionaries for use in the destruction
of buildings and lives. While abhorring the fact that the defendant
sold the dynamite with the knowledge that it would be used for
socially destructive purposes, the Second Circuit held that no
crime had been alleged under section 5861. The Court in Posnjak
stated that commercial dynamite is inherently not a destructive
device. Id at 1116. The Court held that in passing the Act,
Congress was concerned with the objectively identifiable weapons of
war and "gangster-type" weapons and not with the unlawful use of
otherwise legitimate devices. Id. As a corollary to this, the
Second Circuit held that since a combination of the components in
that case would have produced nothing more than otherwise innocent
industrial dynamite commonly used for blasting purposes, the Court
could not delve into the intent of the use of that material. Id. at
1117.
An earlier case which possesses identical reasoning is United
States v. Schofer, 310 F.Supp. 1292 (E.D.N.Y. 1970), a case
involving 48 sticks of dynamite with fuse and blasting cap, in
which the court held that the statute was aimed specifically at the
described articles in (f)(1) and "not at evil perversions of the
use of articles of innocent commerce without alteration of their
nature or mode of operation. . . ." Id. at 1297-98.
However, other Circuit Courts of Appeals which have dealt with
cases involving dynamite in its commercial cylindrical form have
reached the conclusion that otherwise innocent items may become
destructive devices depending upon the user's intent. The Fourth
Circuit has dealt with a case involving the existence of four
sticks of black powder pellet explosive with unattached blasting
caps. That Court in United States v. Morningstar, 456 F.2d 278 (4th
Cir. 1972), cert. denied, 409 U.S. 896, 93 S.Ct. 135, 34 L.Ed.2d
153 (1972), held that under (f)(3), the inclusion or exclusion of
the articles from the Act depends on the use for which the
materials are intended. Id. at 280. Contrary to the Second
Circuit's reading of the legislative history; the Fourth Circuit in
Morningstar was unable to discern a congressional intention
limiting the scope of the Act only to military and "gangster-type"
weapons. Id. at 281. The Ninth Circuit, as well, has determined
that sticks of dynamite, copper wire, fuse and blasting caps
amounted to a destructive device as defined under (f)(1) because of
the defendant's criminal intent to dynamite certain areas of
Eugene, Oregon. See United States v. Oba, 448 F.2d 892, 894 (9th
Cir. 1971), cert. denied, 405 U.S. 935, 92 S.Ct. 979, 30 L.Ed.2d
811 (1972). The Eighth Circuit has followed Oba in finding that
dynamite sticks, fuse and percussion caps placed in gasoline tanks
qualify as destructive devices. See Langel v. United States, 451
F.2d 957, 962 (8th Cir. 1971). The Seventh Circuit has followed
both Oba and Morningstar in finding that three sticks of dynamite,
blasting caps, legwire, a battery and a coil of power cord amounted
to a destructive device because of an evil intent. See Burchfield
v. United States, 544 F.2d 922, 924, 97 S.Ct. 1602, 51 L.Ed.2d 806
(7th Cir. 1976), cert. denied, 430 U.S. 956 (1977). See also United
States v. Greer, 404 F.Supp. 1289 (W.D.Mich. 1975), aff'd, 588 F.2d
1151 (6th Cir. 1978) (finding 15 commercial electric blasting caps
to be a destructive device).
This Court concedes that commercial sticks of dynamite used
for their intended purpose of blasting rocks cannot be viewed as
destructive devices. The Court, however, must agree with the
majority of the circuits that Congress intended to include within
the term "destructive device" the combination of commercially
usable sticks of dynamite, wires and electric blasting caps when
used or intended to be used for antisocial purposes. Although the
word "bomb" found in (f)(1) is not defined in the statute, a common
definitional use of the word would include within it the above
components when intended to be employed for purposes other than
legitimate blasting. The Court cannot perceive how such a device
used with evil intent could not be one "designed or redesigned for
use as a weapon" as required under (f)(3). Although Congress in
enacting the Gun Control Act of 1968 was concerned with the use of
military and "gangster-type" weapons, there is no indication that
the Act was limited to those devices. In fact, it appears that the
Act was intended to expand the scope of the definition rather than
to limit it. See [1968] U.S.Code Cong. & Admin.News, pp. 4410,
4434.
Assuming arguendo that the Court in Posnjak was correct, it
would still not afford any relief to the Defendant in this case.
The instant case does not involve sticks of dynamite. Rather, it
involves dynamite which has been removed from its commercially
usable cylindrical containers transforming it into the brown sticky
moldable substance which the Defendant sold as C-4. Under these
circumstances, the decisional law clearly indicates that the
materials sold by the Defendant amount to a destructive device.
In United States v. Wilson, 546 F.2d 1175 (5th Cir. 1977),
cert. dismissed, 431 U.S. 901, 97 S.Ct. 1690, 52 L.Ed.2d 384
(1977), the Fifth Circuit ruled that a cylindrical object with a
six-inch fuse containing dynamite which had been used to destroy a
vehicle was a destructive device. The Court in that case held that
the purpose of the Act "would be defeated by any interpretation
which excluded from coverage homemade bombs having no lawful use
simply because one of the components was dynamite . . ." Id. at
1177.
In the instant case, Valadez purchased articles which he was
told could be assembled for the purpose of destroying a car or
house. The moldable dynamite, although still commercial in
molecular structure, clearly possessed no capabilities for any
commercial or lawful use. Having been transmuted from its
commercially feasible and acceptable design, its only reasonable
and likely utilization would be that of a homemade bomb.
The Court sees little differentiation in intent and result between
the combination of the parts in this case and the combination of a
bottle, gasoline and cloth wick which, while' innocent as separate
entities, together produce a Molotov cocktail. Both devices when
used for their intended purposes have absolutely no social or
legitimate value. Both are intended only for the wanton destruction
of life or property. The cases among the circuits, including the
Second Circuit, are uniform in their holdings that homemade devices
intended for use in criminal activities are covered by the Act.
See, e. g., United States v. Greer, 588 F.2d 1151, 1155 (6th Cir.
1978) (stating that Congress intended to outlaw the street
varieties of homemade destructive instruments); United States v.
Bubar, 567 F.2d 192, 201(2d Cir. 1977), cert. denied, 434 U;S. 872,
98 S.Ct. 217, 54 L.Ed.2d 151 (1977) (explaining that Posnjak
covered only those materials which because of their legitimate use
could not meet the objective criterion required under the Act and
that dynamite sticks and gasoline drums did amount to a destructive
device); United States v. Curtis, 520 F.2d 1300, 1304 (1st Cir.
1975) (sticks of dynamite bound to a black box found to be a
destructive device); United States v. Tankersley, 492 F.2d 962, 966
(7th Cir. 1974) (Molotov cocktail found to be destructive device);
United States v. Peterson, 475 F.2d 806, 810 (9th Cir. 1973), cert.
denied, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 93 (1973) (Congress
intended to proscribe "friendly things when with evil intent they
are combined or joined together to produce a hostile object or
device through the language used in Subsections (a), (f)(3).");
United States v. Ross, 458 F.2d 1144, 1145 (5th Cir. 1972), cert.
denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972) (stating
that devices that are enumerated in the Act "have in common usage
limited to anti-social purposes.").
In the present case, the Defendant sold commercial dynamite in
moldable form to an ATF agent explaining that it could be used to
destroy a car or any other chosen object. Additionally, the
substance was represented to Valadez as C-4 which is primarily used
in the military for purposes of demolition. Once assembled, a
moldable explosive, be it C-4 or dynamite, equipped with a fuse and
blasting caps employed in a civilian context and sold with the
blatant direction that it be used for antisocial purposes,
qualifies as a destructive device as it is defined in 6 5845(f)(1).
B. Component Parts
The Defendant attempts to evade the sanctions of section 5861
by claiming that no assembled device was sold, and even a
combination of the items sold could not be "readily assembled" into
a destructive device as defined in (f)(1). Specifically, the
Defendant contends that the absence of a power source renders the
items sold harmless. The Defendant is correct when he states that
an individual must possess all the component parts from which a
destructive device could be readily assembled. See United States v.
Malone, 546 F.2d 1182, 1184 (5th Cir. 1977). Malone is
distinguishable, however, from the present case. In Malone, there
was a complete absence of any explosive material, and the decision
was specifically limited to such a situation. The Defendant in the
present case not only supplied Valadez with the explosive material,
but he equipped the agent with all the necessary component parts.
In this case, there was no need for Valadez to purchase the power
source. As the Defendant informed Valadez and as Russell Cooper
testified at the trial, the device could be armed by wiring it to
a car battery. Russell Cooper explained that the firing of the
blasting cap which would in turn detonate the dynamite requires a
force of only .5 amperes. Since the starting power of an automobile
battery is forty amperes, the turning of the key in the ignition
would be more than sufficient to detonate the device and cause the
destruction of the automobile. Assuming that the object to be
destroyed was not a car, the bomber would need nothing more than a
1.5 volt battery to set off the device. In such instances, the
energy source is really not essential to the device. See, e. g.,
United States v. Greer, 404 F.Supp. 1289, 1293 (W.D.Mich. 1975),
aff'd, 588 F.2d 1151 (6th Cir. 1978) (battery or static electricity
could have set off the blasting caps). The acquisition of a 1.5
volt battery would require no more effort than the acquisition of
a match which is the power source of a Molotov cocktail. Based on
these factors, the Court concludes that a combination of the parts
which were sold by the Defendant would have and were intended to
have created a destructive device which could have been readily
assembled.
III. THE FINDING OF GUILT
The Defendant was indicted for a violation of 26 U.S.C.
sections 5861(d), (e) and (i). Section 5861(d) makes it unlawful to
receive or possess an unregistered firearm. Section 5861(e) makes
it unlawful to transfer a firearm in violation of certain
provisions of Chapter 53 of Title 26 of the United States Code
which deals with machine guns and other firearms. These provisions
entail the payment of a transfer tax, the filing of a written
application with the Secretary of the Treasury for the transfer and
registration of the firearm, the payment of a making tax and the
filing of a written application with the Secretary of the Treasury
to make and register the firearm, pursuant to 26 U.S.C. sections
5811, 5812, 5821 and 5822, respectively.
Government Exhibit 5, which is the sealed certificate provided
by the ATF, states that there is no record that the explosive in
this case was registered or lawfully acquired by the Defendant. It
further provides that the Defendant never made application to make
or transfer the explosive nor that he paid the making or transfer
tax.
Finally, section 5861(i) makes it unlawful to receive or
possess a firearm not identified by a serial number. Agent Wheeler
testified under oath that the explosive which Defendant sold to
Agent Valadez possessed no such serial numbers.
None of these issues were rebutted in any fashion by the
Defendant. Based upon the fact that the items sold by the Defendant
could readily be assembled into a destructive device as defined by
section 5845(f)(1) pursuant to section 5845(f)(3) and the evidence
introduced at trial as detailed above, the Court finds that the
Defendant is GUILTY beyond a reasonable doubt of violating those
provisions in Title 26 of the United States Code as charged in
Counts 1 through 3 of the Indictment filed on October 10, 1978.
Therefore, it is hereby
ORDERED that the Defendant's Motion to Dismiss is in all
respects DENIED.
FOOTNOTES
1. The Defendant filed a Motion to Suppress Evidence on November 6,
1978, the same date that he filed his Motion to Dismiss. The
Defendant sought to suppress all evidence of written statements
made by him to agents of the federal government because they were
allegedly obtained in violation of his privilege against self-
incrimination and his right to the assistance of counsel. The
Defendant also asserted that his arrest was unlawful and that any
statements subsequently made by Defendant should be suppressed. The
Defendant at trial, how ever, did not reassert nor argue his Motion
to Suppress at the trial. The Defendant's oral argument stemmed
entirely from his Motion to Dismiss. Even assuming that the
Defendant still desires to assert his Motion to Suppress, this
Court is of the opinion that it is wholly without merit. Testimony
at trial demonstrates that the arrest was lawful and that the
Defendant was sufficiently made aware of his constitutional rights.
It is also clear that the Defendant understood his rights and all
answers made by him were freely given and intelligible.
2. Desiring to demonstrate the effect that three pounds of dynamite
would have upon a vehicle, the ATF obtained dynamite and a blasting
cap which were substantially identical to the materials sold by the
Defendant. Ralph Cooper then conducted a test upon an abandoned
car. The car, although not functional, still possessed all its
major parts such as an engine, wind shield, tires and interior. The
explosive charge was positioned in the rear of the engine area.
Normally, to prime such a device, one wire would be attached to the
battery and another to the spark plug vicinity. For obvious reasons
of safety, however, the device was connected to a wire which
allowed it to be detonated from a safe distance. Government Exhibit
8, a film of this experiment, was introduced and viewed at trial.
Upon detonation, the dynamite completely destroyed the engine and
front seat areas of the vehicle and caused substantial damage to
the remainder of the car.